Opinion | U.S. vs. Rahimi could be the Supreme Court's next big gun case - The Washington Post
By: Paul Waldman (Washington Post)
S E E D E D C O N T E N T
By Paul WaldmanColumnist|AddFollowOctober 4, 2023 at 6:00 a.m. EDTJustice Clarence Thomas at the swearing in of Justice Amy Coney Barrett in 2020. (Jonathan Newton /The Washington Post)Listen5 minShareComment on this storyComment
The Supreme Court has some truly dangerous cases teed up as it starts its new term this week, but none threatens a more repugnant outcome than U.S. vs. Rahimi, the latest gun case the court has taken up.
As if the country's gun laws weren't absurd enough already, the court could make them even more so. In fact, if it wants to uphold the precedent established by Justice Clarence Thomas's outrageous ruling in the 2022 case New York State Rifle & Pistol Association v. Bruen, it would have no choice but to declare that the government can't take guns out of the hands of abusive husbands and boyfriends.
The court's conservatives have two choices: Tell violent abusers everywhere they can keep their guns, or strike a blow against their beloved principle of "originalism," the idea that the Constitution must be applied today by divining the original intent of the men who wrote it and the values of the world they lived in centuries ago.
While oral arguments will give us a better idea of where the justices stand, for now most legal observers believe the plaintiff, Zackey Rahimi, is going to lose. The consequences of him winning — for both the court and the Republican Party — are just too grave.
Rahimi was involved in a series of shooting incidents, including one in which he fired at a bystander who observed him assaulting his girlfriend. She obtained a protective order against him, and when he was arrested for other crimes, he was also charged with violating a federal law prohibiting those under domestic violence restraining orders from possessing guns.
Rahimi argues that the Bruen decision means that law must be struck down. In Bruen, Thomas wrote that laws regulating guns are presumptively unconstitutional unless they are "consistent with the Nation's historical tradition of firearm regulation," which he defined as meaning that they must have an "analogue" to regulations from the time of the country's founding up until the passage of the post-Civil War amendments in the mid-1800s.
In the strictest terms, says Adam Winkler, a UCLA law professor and author of "Gunfight: The Battle Over the Right to Bear Arms in America," Rahimi is right. "We didn't have restraining orders that took guns away from anyone in the 1700s and 1800s," Winkler told me. While there were some laws punishing men for beating their wives and children, none involved confiscating guns. "So it's very hard to say the domestic abuser ban is consistent with the history and tradition of American gun regulation."
It's important to understand that Thomas invented this unique test for gun regulation out of thin air. "There's no other constitutional right that's governed by an exclusive 'history and tradition' test," Winkler says. It's originalism taken to a surreal extreme.
But given the damage that overturning Roe v. Wade did to both the court's credibility and the Republican Party's political fortunes, siding with domestic abusers might not be a stance the justices want to take. The practical consequence of this case is obvious: If Rahimi prevails, more women will die.
More than half of female homicide victims are killed by current or former intimate partners. Every month, about 70 American women are shot and killed this way. One meta-analysis of 17 separate studies found that male domestic abusers who had access to guns were 11 times more likely than abusers without access to guns to kill their victims.
As the authors wrote, "The risk factor that increased the likelihood of [intimate partner homicide] the highest was if the male perpetrator had direct access to guns" — more than whether he had threatened her, strangled her, stalked her, had a criminal record, had a substance abuse problem or any other variable researchers could identify. Guns turn abuse into murder.
The justices might realize that, rather than providing clarity and preventing judges from imposing their own beliefs on the law, Bruen has created widespread confusion in lower courts as judges play amateur historians, with results varying dramatically depending on which court hears each challenge to a regulation. "The current Bruen test is a total mess," Winkler says.
So it's possible the court's less extreme conservatives are looking for a way out. That could mean loosening the Bruen test to say a regulation doesn't need a directly analogous law from two centuries ago, just a general justification — say, that sometimes guns were taken from certain people deemed dangerous, so it's fine to take them from domestic abusers.
If Rahimi wins, laws on everything from carrying guns on planes to background checks to licensing gun dealers might have to be struck down. Even the court's conservatives (apart from Thomas and Samuel A. Alito Jr.) are probably hesitant to go that far.
Which is why, Winkler told me, "This case is the best case for gun-safety advocates that could come along." The result might dial back Bruen and strike a blow against originalism, showing that when justices imprison the country in 18th- and 19th-century ideas and values, even this conservative court can't live with the results.
It would be a partial victory. But at the Supreme Court these days, that's about the best one can hope for.
Tags
Who is online
94 visitors
Gun laws are only useful in making liberals feel good about themselves....that they've "done something" that will result in less violence. and crime.
A determined criminal/shooter/killer will not be deterred by common sense gun laws and will procure a weapon somewhere.
I have the feeling you didnt read any of the article.